UMAR Vs. MAHABIR LAL SAHU

JUDGEMENT

(1.) This appeal which arises out of an execution proceeding is by Umar Mia and Bibi Asma, two of the judgment-debtors who are minors. In the original suit which was for dissolution of partnership and accounts, they were defendants 2 and 3 and in the plaint they were represented by their mother Mt. Sahebzadi who was herself a defendant as their guardian. It appears that Mt. Sahebzadi did not appear in the suit at all but at the very earliest stage the minors step-brother Muhammad Sadiq, who was also a defendant, appeared on his own behalf and also as guardian of the minors. However, in the preliminary decree that was passed against them, the minors were shown to be under the guardianship of their mother.

(2.) In the course of subsequent proceedings in the suit, there was an application by the parties concerned for reference to arbitration. In that application Muhammad Sadiq signed for himself and as guardian of the minors. He also made a separate application for permission to refer the matter to arbitration. Permission was accorded and the matter was referred to arbitration. In due course an award was submitted and on the basis of the award, a final decree was passed against the minors and other defendants in the suit. Against that decree Muhammad Sadiq for self and as guardian of the minors presented an application for revision to the High Court with the result that their liability was reduced to some extent. Subsequently the decree-holder took out execution which was resisted by the minors on the ground that the final decree was not binding against them inasmuch as the reference to arbitration was invalid because their mother who was their guardian did not join in the reference.

(3.) This objection was overruled by the Subordinate Judge and he ordered the execution to proceed. Against this order the present appeal has been preferred by the minors. The contention raised by Mr. De on behalf of the appellants is that under the provisions of Order 32, Rule 5 and 7, Civil P.C., the application for reference to arbitration could be made only by the guardian for the suit after obtaining the necessary leave of the Court and as Muhammad Sadiq who made applications for the purpose was not the guardian, there was no valid reference and therefore the award and the decree were wholly void. Order 32, Rule 7, Sub-rule 2 however provides that any agreement or compromise entered into by the guardian without the leave of the Court shall be voidable against all parties other than a minor.